1. This is a reference made by the learned Sessions Judge of Benares under Section 438, Criminal P.C., recommending that the conviction of the applicants of an offence of theft and sentences of fine passed on them by a Magistrate of the First Class in that district be set aside. The applicants for revision, Lalta Singh and Ram Sakal Singh , are nephews of one Jagardeo whose growing crop was attached in execution of a civil Court decree at the instance of Mahabir, the decree-holder who is also the landholder and cut and removed the crops said to have bean so attached.
2. The attachment was made by beat of drum and it is not disputed that the procedure prescribed by Order 21, Rule 44, Criminal P. C, was not followed. That rule provides that in case of growing crops attachment shall be made
by affixing a copy of the warrant of attachment on the land on which such crop hag grown
and another copy on the outer door or some conspicuous part of the house in which the judgment-debtor ordinarily resides;
and the produce shall thereupon be deemed to have passed into the possession of the Court.
3. The crops will otherwise remain in the possession of the judgment-debtor. Unlike eases of other kinds of moveable property, in which attachment is made by actual seizure, custodia legis in the case of growing crops is symbolical and is effected only by affixation of warrants of attachment provided for by the rule without which the crops do not pass into the possession of the Court.
4. It is of the essence of theft as defined in Section 378, I. P.C., that the accused should move the property from the possession of another. If he does so when it has not passed out of his own possession, he cannot be held to be guilty of theft.
5. In this case the accused cut and removed the crops on behalf of and with the consent of his uncle Jagardeo and cannot be hold guilty of theft.
6. The reference is accepted and the conviction of the applicants is set aside. The fine if paid shall be refunded.